TAC STAFFORD, LLC, a North Carolina Limited Liability Company, Plaintiff, v. TOWN OF MOORESVILLE, a North Carolina body politic and corporate, Defendant.
No. COA21-229
IN THE COURT OF APPEALS OF NORTH CAROLINA
Filed 5 April 2022
2022-NCCOA-217
ZACHARY, Judge.
Iredell County, No. 19 CVS 280
Appeal by defendant from orders entered 10 August 2020 and 23 February 2021 by Judge Martin B. McGee in Iredell County Superior Court. Cross-appeal by plaintiff from order entered 23 February 2021
Cranfill Sumner LLP, by Steven A. Bader and Patrick H. Flanagan, for defendant-appellant/cross-appellee.
ZACHARY, Judge.
Defendant Town of Mooresville (“the Town“) appeals from the trial court‘s 10 August 2020 order granting Plaintiff TAC Stafford, LLC‘s motion for summary judgment, denying the Town‘s motion for summary judgment, and issuing a writ of mandamus “requiring [the Town] to take all necessary steps to authorize the issuance of development approvals for the Stafford Subdivision without regard to construction of the [o]ff-[s]ite [i]mprovements[.]” The Town also appeals from the trial court‘s 23 February 2021 order granting in part Plaintiff‘s motion for reimbursement of fees and denying the Town‘s motion to stay. Lastly, Plaintiff cross-appeals from the trial court‘s 23 February 2021 order denying in part its motion for reimbursement of expenditures and recovery of attorneys’ fees and costs.
After careful review, we affirm the 10 August 2020 order. As for the 23 February 2021 order, we affirm in part, reverse in part, and remand to the trial court.
Background
In 2014, Plaintiff purchased the Stafford Subdivision property (the “Subdivision“), which was zoned R-3 (Single Family Residential-3), allowing for development by right of three residential units per acre. Plaintiff submitted concept plans for the Subdivision to the Town, and on 21 January 2015, the Town informed Plaintiff via a series of emails first that the concept plans were approved, then that the approval was subject to the completion of a traffic impact analysis (“TIA“) and the notation on the plan of “any required on-site and off-site improvements[.]”
Pursuant to a preexisting agreement, the Town selected Ramey Kemp & Associates, Inc. (“Ramey Kemp“) to prepare the TIA, an expense for which Plaintiff was required to reimburse the Town. On 13 August 2015, Ramey Kemp completed and sealed the TIA. Still seeking the development approvals, Plaintiff entered into a Mitigation Measures Agreement (“MMA“) with the Town on 4 November 2015. The MMA obligated Plaintiff to implement certain mitigation measures, including various improvements to off-site public transportation locations (the “off-site improvements“) up to 2.3 miles away from the Subdivision, “as a condition of development.” The MMA also conditioned the issuance of certificates of occupancy (“COs“) for certain units of the Subdivision on completion of the off-site improvements.
Following minor changes to the Subdivision concept plan, on 6 March 2017, the parties executed an amended MMA. In its attempt to complete its obligations under the MMA, Plaintiff spent a total of $993,584.00. However, Plaintiff was ultimately unable to purchase rights-of-way from the owners of various properties necessary to complete the off-site improvements. Plaintiff requested that the Town condemn the properties, pursuant to the Town‘s preexisting policy concerning the private acquisition of property to facilitate transportation mitigation measures, but the Town rejected Plaintiff‘s request during three meetings between December 2017 and October 2018 at which Plaintiff was not present. The Town then refused to issue the remaining COs for more than half of the Subdivision, on the ground that Plaintiff had breached the MMA by failing to complete the required off-site improvements.
On 30 January 2019, Plaintiff filed a complaint against the Town asserting multiple claims for declaratory and injunctive relief arising from its obligations to make the off-site improvements in accordance with the MMA, as well as claims for inverse condemnation, refund of illegally exacted fees, and breach of contract (if the MMA were found to be enforceable). Plaintiff argued, inter alia, that the Town lacked authority under
On 14 February 2020, the Town moved for summary judgment. Plaintiff filed its own motion for summary judgment on 18 February 2020. On 24 February 2020, the motions for summary judgment came on for hearing in Iredell County Superior Court. On 10 August 2020, the trial court entered its order granting Plaintiff‘s motion for summary judgment, denying the Town‘s motion for summary judgment, granting Plaintiff‘s petition for a writ of mandamus, and reserving for later determination the financial issues such as attorneys’ fees, costs, and reimbursement of expenditures.
On 4 September 2020, the Town filed its notice of appeal. That same day, the Town filed a motion to stay or enjoin execution or enforcement of the order and writ
of mandamus, pending its appeal. The Town‘s motion came on for hearing on 2 October 2020, at which hearing Plaintiff again raised the financial issues. The trial court requested supplemental briefing on the financial issues, which both parties filed in November 2020.
On 23 February 2021, the trial court entered an order granting in part and denying in part Plaintiff‘s motion for reimbursement of expenditures, determining that the Town “should return $101,500.00 plus 6% interest per annum” to Plaintiff pursuant to
On 24 February 2021, the Town filed its notice of appeal from the 23 February 2021 order. Plaintiff filed its notice of appeal from the same order on 8 March 2021.
Summary Judgment
On appeal from the trial court‘s 10 August 2020 order granting Plaintiff‘s motion for summary judgment and denying the Town‘s motion for summary judgment, the Town argues that the trial court erred by concluding that the Town did not have the authority to require off-site improvements as a condition for issuing development approvals for the Subdivision.
A. Standard of Review
We conduct de novo review of a trial court‘s grant of summary judgment “because the trial court rules only on questions of law.” Buckland v. Town of Haw River, 141 N.C. App. 460, 462, 541 S.E.2d 497, 499 (2000) (citation omitted). “A trial court may grant a motion for summary judgment where there is no genuine issue of material fact and where the movant is entitled to judgment as a matter of law.” Id.;
B. Analysis
In its order granting Plaintiff‘s motion for summary judgment, the trial court relied on this Court‘s opinion in Buckland to support its conclusion that
On appeal, this Court reviewed
A subdivision control ordinance may provide for the orderly growth and development of the city; for the coordination of transportation networks and utilities within proposed subdivisions with existing or planned streets and highways and with other public facilities; for the dedication or reservation of recreation areas serving residents of the immediate neighborhood within the subdivision or, alternatively, for provision of funds to be used to acquire recreation areas serving residents of the development or subdivision or more than one subdivision or development within the immediate area, and rights-of-way or easements for street and utility purposes including the dedication of rights-of-way pursuant to G.S. 136-66.10 or G.S. 136-66.11;
and for the distribution of population and traffic in a manner that will avoid congestion and overcrowding and will create conditions that substantially promote public health, safety, and the general welfare.
Interpreting
In the present case, the Town argues that Buckland only interpreted the first clause of
The Town urges this Court to adopt a broad construction of
may provide that in lieu of required street construction, a developer may be required to provide funds that the city may use for
the construction of roads to serve the occupants, residents, or invitees of the subdivision or development and these funds may be used for roads which serve more than one subdivision or development within the area.
However, we are only at liberty to adopt a broad construction of
The Town does not identify any such ambiguity in the plain text of
The plain text of
Lastly, the Town attempts to distinguish Buckland on its facts. While Plaintiff here sought approval of the development of the Subdivision with 467 lots on 209 acres, the developers in Buckland sought approval for only 11 lots on 7.6 acres. Id. at 461, 541 S.E.2d at 499. The Town also notes that Buckland makes no mention of a TIA or MMA, and asserts that the Town of Haw River “provided no justification for its pre-condition” in that case. Accordingly, the Town argues that “[t]hese distinctions ... warrant a different outcome” in this case.
Yet the Town makes no argument as to why these distinctions warrant a different outcome. Nothing in Buckland purports to limit its holding that
The trial court did not err in granting Plaintiff‘s motion for summary judgment. Accordingly, the Town‘s argument is overruled, and the trial court‘s 10 August 2020 order is affirmed.
Attorneys’ Fees
On appeal from the trial court‘s 23 February 2021 order, the Town argues that the trial court erred by awarding attorneys’ fees to Plaintiff. We disagree.
The trial court determined that “Plaintiff is entitled to recover reasonable attorneys’ fees pursuant to G.S. 6-21.7.” That statute provides, inter alia:
In any action in which a city or county is a party, upon a finding by the court that the city or county violated a statute or case law setting forth unambiguous limits on its authority, the court shall award reasonable attorneys’ fees and costs to the party who successfully challenged the city‘s or county‘s action.
“It is well established that the word ‘shall’ is generally imperative or mandatory when used in our statutes.” Morningstar Marinas/Eaton Ferry, LLC v. Warren Cty., 368 N.C. 360, 365, 777 S.E.2d 733, 737 (2015) (citation and internal quotation marks omitted). Thus,
The Town argues that the trial court erred in awarding attorneys’ fees to Plaintiff pursuant to
As previously discussed, Buckland does not support the Town‘s claimed authority to act as it has in this case. Moreover, Buckland‘s analysis is not ambiguous, and the Town‘s assertions to the contrary fail to persuade. Because the Town “violated a statute or case law setting forth unambiguous limits on its authority,” id., the trial court did not err in awarding attorneys’ fees to Plaintiff. The Town‘s argument is overruled.
Recovery of Plaintiff‘s Expenditures
On cross-appeal from the trial court‘s 23 February 2021 order, Plaintiff argues that it is entitled to recover “all money expended in relation to the illegal [o]ff-[s]ite [i]mprovements that the Town unlawfully imposed[.]” Alternatively, Plaintiff argues that it is entitled to recover the same money as “compensatory damages based on the alternative claims” that Plaintiff raised in its verified complaint.
A. Standard of Review
In its 23 February 2021 order on the monetary issues remaining after entry of its 10 August 2020 order, the trial court granted in part and denied in part Plaintiff‘s motion for reimbursement of expenditures. Specifically, the trial court interpreted
Although the assessment of costs is generally within the discretion of the trial court, when the validity of an award of costs hinges upon the extent to which the trial court properly interpreted the applicable statutory provisions, the issue before the appellate court is one of statutory construction, which is subject to de novo review.
Justus v. Rosner, 371 N.C. 818, 829, 821 S.E.2d 765, 772 (2018) (citations and internal quotation marks omitted).
B. Exaction
In its 23 February 2021 order, the trial court concluded that the Town “should return $101,500.00 plus 6% interest per annum to [Plaintiff] for reimbursement of fees paid to the Town” pursuant to
The other funds paid by [Plaintiff] . . . were paid to other entities — not the Town — in the course of the development of the property and as part of the MMA. Plaintiff elected to pay these funds. The funds were not “exacted” by the Town. As a result, the funds are not a “tax, fee, or
monetary contribution” under § 160A-363(e) that the Town can return.
On cross-appeal, Plaintiff asserts that it is undisputed that its total expenditures in pursuit of the off-site improvements were $993,584.00 and argues that the trial court erred in not awarding it the full amount of its undisputed expenditure. Plaintiff contends that to be entitled to relief under
“An exaction is a condition of development permission that requires a public facility or improvement to be provided at the developer‘s expense.” Franklin Rd. Props. v. City of Raleigh, 94 N.C. App. 731, 736, 381 S.E.2d 487, 490 (1989) (citation omitted). This Court has identified the categories into which exactions most commonly fall, including “requirements that land be dedicated for street rights-of-way, parks, or utility easements and the like” and “requirements that improvements be constructed or installed on land so dedicated[.]” Id. (citation omitted).
Here, Plaintiff argues that the Town
unlawfully required Plaintiff, as a condition of development, to expend its own funds—i.e., to contribute monetarily—to obtain required right-of-way and easements from third parties, design and construct off-site improvements which [Plaintiff] itself had no use for and which provide [Plaintiff] no benefit outside of attempting to comport with the Town‘s illegal and coercive demands to obtain required necessary development approvals.
(Emphasis omitted). Accordingly, Plaintiff argues that the full amount of $993,584.00 was an “exaction” that it is entitled to recover under
However, this definition alone does not resolve the issue before us. The trial court determined that only $101,500.00 of Plaintiff‘s expenditures were paid directly to the Town, and as such, those were the only funds “exacted” by the Town. The Town notes in response to Plaintiff‘s cross-appeal that
Neither party cites any case that directly addresses this issue in interpreting
However, Plaintiff also argues that the trial court erred in finding that the total sum of funds paid directly to the Town was $101,500.00. Plaintiff claims that it “is also entitled to recover the $155,679.00 paid in relation to the traffic engineering performed by Ramey Kemp,” because that amount was “actually paid directly to the Town[.]”
Our careful review of the record suggests that the trial court arrived at its total of $101,500.00 paid to the Town from an affidavit provided by Plaintiff in support of its motion for summary judgment. That affidavit also lists $155,679.00 as the amount paid to Ramey Kemp. However, Plaintiff directs us to an exhibit in the record, composed of a letter from a transportation engineer for the Town, directing that Plaintiff “issue a check to the Town of Mooresville (memo: Stafford TIA),” and assuring Plaintiff that “[o]nce I have received the payment in full
As such, even though we affirm the trial court‘s conclusion of law concerning the meaning of an exaction pursuant to
C. Mandamus
Lastly, Plaintiff argues that the trial court erred in concluding that Plaintiff‘s remaining claims were rendered moot by the issuance of a writ of mandamus, and by dismissing those remaining claims with prejudice. While Plaintiff agrees that the court‘s writ of mandamus was “vital” to its ability to obtain prospective relief, Plaintiff maintains that mandamus “alone does not make [it] whole” and “simply does not afford [it] complete relief for the damages [it] incurred . . . as a direct result of the Town‘s unlawful conduct.” We disagree.
The writ of mandamus is “a limited and extraordinary remedy to provide a swift enforcement of a party‘s already established legal rights.” Holroyd v. Montgomery Cty., 167 N.C. App. 539, 543, 606 S.E.2d 353, 356 (2004), disc. review and cert. denied, 359 N.C. 631, 613 S.E.2d 690 (2005). “The function of a writ of mandamus is to compel the performance of a ministerial duty—not to establish a legal right, but to enforce one which has been established.” Id. at 543, 606 S.E.2d at 356-57 (citation omitted). The trial court “may only issue a writ of mandamus in the absence of an alternative, legally adequate remedy.” Graham Cty. Bd. of Elections v. Graham Cty. Bd. of Comm‘rs, 212 N.C. App. 313, 322, 712 S.E.2d 372, 379 (2011) (citation omitted).
In the present case, with the exception of the motion for litigation costs and attorneys’ fees pursuant to
“A case is ‘moot’ when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. Courts will not entertain or proceed with a cause merely to determine abstract propositions of law.” Roberts v. Madison Cty. Realtors Ass‘n, 344 N.C. 394, 398–99, 474 S.E.2d 783, 787 (1996) (citations and internal quotation marks omitted). Here, the trial court correctly determined that Plaintiff‘s claims, other than the motion for litigation costs and attorneys’ fees, were rendered moot by the issuance of the writ of mandamus, in that each claim sought relief from the Town‘s requirement of off-site improvements as a condition of development approval. Because the issuance of the writ of mandamus provided the relief that Plaintiff sought, at that point, further determination of Plaintiff‘s remaining claims could
Conclusion
For the reasons stated herein, we affirm the trial court‘s 10 August 2020 summary judgment order in its entirety. The 23 February 2021 order is affirmed, in part, as to the award of attorneys’ fees to Plaintiff and the dismissal of Plaintiff‘s remaining claims as moot; reversed, in part, as to the amount of Plaintiff‘s expenditures that it may recover from the Town pursuant to
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Judges WOOD and GRIFFIN concur.